MOTION TO DISMISS · When reviewing a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the Court...

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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY

CENTRAL DIVISION AT FRANKFORT

CIVIL ACTION NO. 3:19-cv-00051-GFVT

ELECTRONICALLY FILED

LESLIE GLASS, Administratrix of the

Estate of her son, Dylan Harrison Stratton, deceased PLAINTIFF

v.

FRANKLIN COUNTY, KENTUCKY, et al. DEFENDANTS

MOTION TO DISMISS

Come Defendants Franklin County, Kentucky and Rick Rogers, Kelly Hayes, DeAndre

Johnson, Kaelan Benedict, Aarron McDonald, Aaron Willard, Mindy Carender, Robert Kelty,

Charles King, John Ringer, Michelle Jiminez, Bruce Sams, Anthony Pullen, Rosa Talarico, Colin

Wells, Jacob Garland, Megan Lewis, Jonathan Fenstermaker, Brandon Price, Darlene Yount,

Joseph Campbell, Amanda Nwamkpa, Austin May, Ladoya Huff, Bronwen Cole, Kayla Holland,

Jenny Hockensmith, and Tarin Tejada, each individually (collectively, the “Franklin County

Defendants”), by counsel, and respectfully move the Court pursuant to Fed. R. Civ. P. 12(b)(6) to

Dismiss with prejudice the Complaint against them herein. The grounds for the Franklin County

Defendants’ Motion are set forth in a Memorandum filed contemporaneously herewith.

Case: 3:19-cv-00051-GFVT Doc #: 9 Filed: 09/11/19 Page: 1 of 2 - Page ID#: 233

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Respectfully submitted,

/s/ D. Barry Stilz

D. Barry Stilz

Lynn Sowards Zellen

Kinkead & Stilz, PLLC

301 East Main Street, Suite 800

Lexington, KY 40507

Telephone: (859) 296-2300

Facsimile: (859) 296-2566

[email protected]

[email protected]

Counsel for Franklin County Defendants

CERTIFICATE OF SERVICE

I certify that true and correct copies of the foregoing have been served by CM/ECF on this

the 11th day of September, 2019, on counsel of record for all parties.

/s/ D. Barry Stilz


Case: 3:19-cv-00051-GFVT Doc #: 9 Filed: 09/11/19 Page: 2 of 2 - Page ID#: 234

mailto:[email protected]

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v.


MEMORANDUM IN SUPPORT OF MOTION TO DISMISS

Come Defendants Franklin County, Kentucky, and Rick Rogers, Kelly Hayes, DeAndre

Johnson, Kaelan Benedict, Aarron McDonald, Aaron Willard, Mindy Carender, Robert Kelty,

Charles King, John Ringer, Michelle Jiminez, Bruce Sams, Anthony Pullen, Rosa Talarico, Colin

Wells, Jacob Garland, Megan Lewis, Jonathan Fenstermaker, Brandon Price, Darlene Yount,

Joseph Campbell, Amanda Nwamkpa, Austin May, Ladoya Huff, Bronwen Cole, Kayla Holland,

Jenny Hockensmith, and Tarin Tejada, each individually (collectively, the “Franklin County

Defendants”), by counsel, and for their Memorandum in Support of their Motion pursuant to Fed.

R. Civ. P. 12(b)(6) to Dismiss with prejudice the Complaint against them herein, state as follows:

I. INTRODUCTION

Dylan Stratton tragically died while he was an inmate at the Franklin County Regional Jail.

His estate filed this lawsuit against Franklin County, the Franklin County Jailer, the jail’s medical

service providers, and numerous employees of each entity asserting claims under both federal and

state law. But the Complaint utterly fails to identify any specific action taken by any particular

jail staff member that contributed to Stratton’s death. Instead, the plaintiff lumps together 33

Case: 3:19-cv-00051-GFVT Doc #: 9-1 Filed: 09/11/19 Page: 1 of 11 - Page ID#: 235

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individual defendants and claims that at some point during the week Stratton was incarcerated, one

or more of them violated Stratton’s rights in some manner. The plaintiff’s approach falls far short

of procedural and substantive pleading requirements, and its Complaint against the Franklin

County Defendants should therefore be dismissed.

II. FACTUAL BACKGROUND1

Dylan Stratton was booked into the Franklin County Regional Jail (“FCRJ”) on January

17, 2019, on a drug charge. Complaint, D.E. 1, ¶ 12. Stratton was flagged for possible drug

withdrawal and suicide and placed on observation accordingly. Id. at ¶¶ 2, 15. Observation logs

indicate that Stratton occasionally failed to eat his meals, was given a shower one morning

“possibly due to profuse vomiting and/or diarrhea,” and received water from a deputy jailer on one

occasion “possibly due to concerns over dehydration.” Id. at ¶ 15. On January 18, 2019, Stratton

suffered a seizure; was heard screaming, yelling, and making delusional statements; was seen

rolling on the floor; and tried to leave his cell whenever the door was opened. Id. at ¶ 16.

On January 20, 2018, Defendant Rosa Talarico, a deputy jailer, contacted Kelley Ford of

New Vista of the Bluegrass, Inc. (“Bluegrass”), a medical provider for the FCRJ, about Stratton’s

behavior. Id. at ¶¶ 17, 7. Ms. Ford believed Stratton was actively psychotic and recommended

that he remain under observation and that the safety chair be used as needed. Id. at ¶ 17.

Stratton remained psychotic on January 22, 2019, and was seen rolling on the floor as if

swimming and yelling for someone to “start the car.” Id. at ¶ 21. Deputy Talarico again contacted

Ms. Ford, who referred him for a medical evaluation. Id. Defendant Sabina Trivette, a nurse

employed by Southern Health Partners, Inc. (“SHP”), and assigned to provide medical care for

1 For purposes of this Motion, the factual background is taken from the Complaint and is assumed to be true. However,

the Franklin County Defendants in no way admit the veracity of the facts set forth herein or waive the right to dispute

them in the event their Motion to Dismiss is denied.


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inmates at the FCRJ, saw Stratton in his cell later that day and gave him fluids. Id. at ¶¶ 21, 9, 10.

Tragically, Stratton was found unresponsive in his cell on January 23, 2019, and died. Id.

at ¶ 23. According to the Complaint, for “an extended period of time prior to his death,” Stratton

was naked and flailing in his cell, reaching for things and talking to people that were not there. Id.

The Complaint also alleges that “his actions were being observed by deputy jailers named as

Defendants herein with no action being taken on their part to address his emergent physical, mental

and emotional condition.” Id. Further, according to the Complaint, “[t]he individual Defendant

deputy jailers, were all on duty, at one time or another, during [Stratton’s] incarceration, observed

his emergency medical condition, and failed to do anything they were required to do by the Jail’s

medical emergency services policy.” Id. at ¶ 26.

Finally, the Complaint asserts that Franklin County and Jailer Rick Rogers were on notice

of the deputy jailers’ “ignorance of and failure to follow the Jail’s emergency medical services

policy for inmates experiencing withdrawal” based on testimony in a previous lawsuit that deputies

performing observations understood that their only obligation “was to look for ‘living, breathing,

flesh,’ with no indication that anything observed would be conveyed to medical staff.” Id.2

On July 16, 2019, the plaintiff, Leslie Glass, in her capacity as Administratrix of Stratton’s

Estate (the “Estate”), filed this lawsuit against Franklin County, Jailer Rogers, and 33 deputy jailers

(collectively, the “Deputy Jailers”),3 as well as Bluegrass and SHP and certain of their employees.

The Complaint assert claims against Franklin County, Jailer Rogers, and the Deputy Jailers for

2 The Franklin County Defendants specifically respectfully reserve their right to dispute the Complaint’s blatant

mischaracterization of the deputy jailers’ testimony in the prior lawsuit.

3 Although the undersigned has been retained to represent each of the 33 Deputy Jailers under a reservation of rights,

this motion is being filed only on behalf of those defendants who have been served either personally or through

counsel. To date, defendants Brooklyn Hedger, Chris Wethington, John Riddle, Andrew Lewis, and Matthew

McGuire, have not been served, nor has the undersigned been authorized to accept service on their behalf. (The

Complaint names two defendants with the last name Cole, first name unknown; however, only one Cole, Bronwen

Cole, is or was employed at the FCRJ, and the undersigned has accepted service on his behalf.)


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constitutional violations under 42 U.S.C. § 1983 based on the theories of (1) deliberate indifference

to medical needs, (2) excessive force, (3) failure to protect, (4) municipal liability under Monell v.

Department of Social Services, 436 U.S. 658 (1978), and (5) failure to train and supervise. The

Estate also alleges claims under state law for (6) negligence/gross negligence, (7) wrongful death,

(8) battery, and (9) intentional infliction of emotional distress. For the reasons set forth below,

the Estate’s Complaint fails to state a claim against the Franklin County Defendants upon which

relief may be granted and therefore should be dismissed.

III. ARGUMENT

When reviewing a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the Court must

“construe the complaint in the light most favorable to the plaintiff, accept its allegations as true,

and draw all reasonable inferences in favor of the plaintiff.” Directv, Inc. v. Treesh, 487 F.3d 471,

476 (6th Cir. 2007). In order to survive a motion to dismiss, the plaintiff must plead “factual

content that allows the court to draw the reasonable inference that the defendant is liable for the

alleged misconduct,” which requires more than alleging facts that are “merely consistent with” a

defendant’s liability. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Instead, the complaint must

allege “either direct or inferential allegations with respect to all material elements necessary to

sustain a recovery under some viable theory.” Weisbarth v. Geauga Park Dist., 499 F.3d 538, 541

(6th Cir. 2007) (internal quotation and citation omitted). And the Court “need not accept as true

any ‘conclusory allegations that do not include specific facts necessary to establish the cause of

action.’” Bickerstaff v. Lucarelli, 830 F.3d 388, 396 (6th Cir. 2016) (quoting New Albany Tractor,

Inc. v. Louisville Tractor, Inc., 650 F.3d 1046, 1050 (6th Cir. 2011)). Even under this liberal

standard, the Estate has not pleaded sufficient facts to support an inference that the Franklin County

Defendants are liable to it.


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A. The Complaint fails to allege facts sufficient to state a claim against the Deputy

Jailers under § 1983.

The Estate alleges that the Deputy Jailers were deliberately indifferent to Stratton’s medical

needs and either used excessive force against him or failed to protect him from self-harm. Pretrial

detainees’ claims under the Fourteenth Amendment for both deliberate indifference to medical

needs and failure to protect consist of an objective element and a subjective element; to establish

the latter, a plaintiff must prove that prison officials (1) subjectively perceived facts from which

to infer a substantial risk to the prisoner, (2) did in fact draw the inference, and (3) disregarded the

risk. Farmer v. Brennan, 511 U.S. 825, 837 (1994); Ruiz-Bueno v. Scott, 639 F. App’x 354, 359

(6th Cir. 2016); Galloway v. Anuszkiewicz, 518 F. App’x 330, 333 (6th Cir. 2013). However, the

Franklin County Defendants acknowledge that this Court recently signaled that it will evaluate all

pretrial detainees’ Fourteenth Amendment claims under the objective standard adopted by the

Supreme Court in Kinglsey v. Hendrickson, 135 S.Ct. 2466 (2015). See Griffith v. Franklin

County, Civil No. 3:16-cv-00077-GFVT-EBA, 2019 WL 1387691, at *3-5 (E.D. Ky. Mar. 27,

2019). Under Kingsley, which was a Fourteenth Amendment excessive force claim, a pretrial

detainee can prevail on the second deliberate indifference prong by showing that a defendant

“recklessly failed to act with reasonable care to mitigate the risk that the condition posed to the

pretrial detainee even though the defendant-official knew, or should have known, that the condition

posed an excessive risk to health or safety.” Id. at p. 7 (quoting Bruno v. City of Schenectady, 727

F. App’x 717, 720 (2d Cir. 2018)). The Franklin County Defendants respectfully submit that

Kingsley should be limited to claims for excessive force. See Kingsley, 135 S.Ct. at 2472 (defining

question before Court as standard applied to excessiveness of force). However, under either

standard, the Complaint does not allege facts sufficient to state a claim against the Deputy Jailers.

In order to state a claim for individual liability under § 1983, “a plaintiff must plead that


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each Government-official defendant, through the official’s own individual actions, has violated

the Constitution.” Iqbal, 556 U.S. at 676; accord Apsey v. Chester Township, 608 F. App’x 335,

339 (6th Cir. 2015) (“In a § 1983 action, each defendant’s liability must be individually assessed

to ensure that no defendant is improperly held liable for the conduct of another.”). Thus, “a

generalized pleading that refers to all defendants generally and categorically,” as opposed to

alleging, “’with particularity, facts that demonstrate what each defendant did to violate the asserted

constitutional right,’” does not adequately state a § 1983 claim. Marcilis v. Township of Redford,

693 F.3d 589, 596-97 (6th Cir. 2012) (quoting Lanman v. Hinson, 529 F.3d 673, 684 (6th Cir.

2008)). Applying that principle, the Court in Marcilis held that a complaint that mentioned two

defendants by name in only one paragraph as employees of the Drug Enforcement Agency and

otherwise made “only categorical references to ‘Defendants’” was properly dismissed. Id.

Like in Marcilis, the Estate’s Complaint in this case fails to allege with particularity facts

demonstrating what each of the 33 Deputy Jailers named as defendants did to violate Stratton’s

constitutional rights. In fact, the only non-categorical references in the Complaint to any of the

Deputy Jailers’ interactions with Stratton are the Estate’s allegations that Deputy Talarico called

Ms. Ford at Bluegrass on January 20, 2019, and January 22, 2019, due to concerns about Stratton’s

behavior. Complaint, D.E. 1, ¶¶ 17, 21. As a matter of law, Deputy Talarico was not deliberately

indifferent to Stratton’s constitutional rights when she contacted a medical provider. See Graham

ex rel. Estate of Graham v. County of Washtenaw, 358 F.3d 377, 384 (6th Cir. 2004) (prison

officers entitled “to rely on medical judgments made by medical professionals responsible for

prisoner care”).

Instead, in support of the Estate’s deliberate indifference claim, the Complaint relies

entirely on conclusory allegations and categorical references, asserting that all 33 Deputy Jailers


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were “on duty, at one time or another, during [Stratton’s] incarceration” and observed his condition

but failed to respond in accordance with FCRJ policies. Complaint, D.E. 1, ¶ 26; see also id. at ¶

6 (alleging that all 33 Deputy Jailers “personally and directly participated in the mistreatment of”

Stratton). As regards the excessive force/failure-to-protect claim, the Complaint does not identify

any instance in which force was used against Stratton or in which Stratton harmed himself, let

alone identify which of the Deputy Jailers the Estate believes was responsible. See id. at ¶ 35

(alleging that Deputy Jailers either used excessive force against Stratton or failed to protect him

from self-harm). The Estate’s shotgun approach simply does not comport with the well-

established standard for individualized assessment of defendants’ liability under § 1983, and its

claims against the Deputy Jailers should therefore be dismissed.

B. The Complaint fails to allege facts sufficient to state a claim for supervisory

liability under § 1983 against Jailer Rogers.

The Estate alleges that Jailer Rogers failed to adequately train and supervise the Deputy

Jailers with respect to policies related to inmates suffering from withdrawal. But “unconstitutional

conduct by a subordinate” is a prerequisite to § 1983 liability on the basis of a defendant’s

supervisory capacity. McQueen v. Beecher Comm. Schs., 433 F.3d 460, 470 (6th Cir. 2006). As

set forth above, the Complaint does not allege a constitutional violation by any of the Deputy

Jailers, and the Estate’s claim against Jailer Rogers therefore must be dismissed.

Moreover, even if the Estate had adequately alleged an underlying constitutional violation,

“[g]overnment officials may not be held liable for the unconstitutional conduct of their

subordinates under a theory of respondeat superior.” Iqbal, 556 U.S. at 676. Instead, “each

Government official, his or her title notwithstanding, is only liable for his or her own misconduct.”

Id. at 677. Therefore, a plaintiff seeking to impose liability against a supervisor must show, at a

minimum, “that the official at least implicitly authorized, approved, or knowingly acquiesced in


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the unconstitutional conduct of the offending officers.” Everson v. Leis, 556 F.3d 484, 495 (6th

Cir. 2009) (quoting Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999)). Although the Estate

alleges that Jailer Rogers knew that the Deputy Jailers were not complying with the FCRJ

emergency medical services policy with respect to inmates experiencing drug withdrawal

(Complaint, D.E. 1, ¶ 26), violation of an internal policy does not equate to a constitutional

violation. Smith v. Freland, 954 F.2d 343, 347-48 (6th Cir. 1992); see also Pecsi v. City of Niles,

674 F. App’x 544, 547 (6th Cir. 2017) (issue is whether “department’s supervision was

constitutionally deficient, not whether it satisfied a higher standard created by state law”).

Moreover, in Griffith v. Franklin County, the case the Estate cites in support of its supervisory

liability claim, the Court granted summary judgment in favor of both Franklin County and Jailer

Rogers based on the absence of an underlying constitutional violation. Civil No. 3:16-cv-00077-

GFVT-EBA, 2019 WL 1387691 (E.D. Ky. Mar. 27, 2019). Accordingly, the Estate’s allegations

do not satisfy the Everson standard requiring knowledge of unconstitutional conduct by

subordinates, and the § 1983 claim against Jailer Rogers should be dismissed.4

C. The Complaint does not allege facts sufficient to state a claim against Franklin

County under Monell.

Like supervisory claims, municipal liability claims under § 1983 must be predicated on a

constitutional violation. “If no constitutional violation by the individual defendants is established,

the municipal defendants cannot be held liable under § 1983.” Watkins v. City of Battle Creek,

273 F.3d 682, 687 (6th Cir. 2001) (citing City of Los Angeles v. Heller, 475 U.S. 796, 799 (1968));

Khaled v. Dearborn Heights Police Dep’t, 711 F. App’x 766, 772 (6th Cir. Oct. 4, 2017); Moore

v. City of Memphis, 853 F.3d 866, 872 (6th Cir. 2017); Sampson v. Gee-Cram, 655 F. App’x 383,

4 As in Griffith, the Estate does not allege that Jailer Rogers was involved in Stratton’s care, and there is therefore also

no basis for imposing liability outside his supervisory capacity. 2019 WL 1387691 at *8.


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391 (6th Cir. 2016); Estate of Hickman v. Moore, 502 F. App’x 459, 468 (6th Cir. 2012); Simon v.

Cook, 261 F. App’x 873, 881-82 (6th Cir. 2008); Cooper v. County of Washtenaw, 222 F. App’x

459, 473 (6th Cir. 2007); Summerland v. County of Livingston, 240 F. App’x 70, 79 (6th Cir.

2007); Crocker ex rel. Estate of Tarzwell v. County of Macomb, 119 F. App’x 718, 724 (6th Cir.

2005). Accordingly, the Estate’s § 1983 claim against Franklin County must be dismissed because

it has not adequately alleged that any of the Deputy Jailers violated Stratton’s constitutional rights.

Even if the Estate could offer sufficient proof of a violation of Stratton’s rights, it has not

alleged facts sufficient to hold Franklin County liable. A government entity can be responsible for

a deprivation of rights only if it occurred by reason of a governmental “custom” or “policy.”

Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694-95 (1978). To adequately plead a claim under

Monell, the plaintiff cannot rely on conclusory statements but must identify specific facts

supporting liability. Vidal v. Lexington Fayette Urban County Gov’t, 2014 WL 4418113, at *3

(E.D. Ky. Sept. 8, 2014) (requiring “more than bare statements that the alleged constitutional

violation was caused by a policy or custom to survive a motion to dismiss”). For example, the

complaint “must describe what the official custom or policy was and describe how it was violated.”

Kustes v. Lexington-Fayette Urban County Gov’t, 2013 WL 4776343, at *5 (E.D. Ky. Sept. 3,

2013). But the Estate’s Complaint does not plead any specific facts on which the Court or a jury

could find that the supposed custom of not following the FCRJ emergency medical services policy

led any of the Deputy Jailers to violate Stratton’s constitutional rights. Moreover, as set forth

above, the Court in Griffith found that there was no constitutional violation by FCRJ deputies, and

their testimony therefore does not establish either a pattern of constitutional violations or that

unconstitutional conduct would be an obvious consequence of continued non-compliance as

required to maintain a claim under Monell. See Connick v. Thompson, 563 U.S. 51, 61-63 (2011).


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The Estate’s § 1983 claim against Franklin County should therefore be dismissed.

D. The Complaint fails to allege facts sufficient to state a claim against the

Franklin County Defendants under Kentucky law.5

As an initial matter, the Estate’s state-law claims against Franklin County must be

dismissed because they are barred by sovereign immunity. See Schwindel v. Meade County, 113

S.W.3d 159, 163 (Ky. 2003). “Sovereign immunity entitles its possessor to be free from the

burdens of not only liability, but also of defending the action.” Commonwealth v. Samaritan

Alliance, LLC, 439 S.W.3d 757, 760 (Ky. App. 2014). And for the reasons set forth above, the

Estate’s individual-capacity claims under Kentucky law for negligence and gross negligence and

battery should be dismissed because they are not supported by non-conclusory factual allegations.

Without an underlying negligent act, the Estate’s wrongful death claim also must be dismissed.

KRS 411.130(1). And finally, the Estate’s claim for intentional infliction of emotional distress

should be dismissed because it is a gap-filler and cannot be maintained where, as here, the actor’s

conduct is alleged to amount to the commission of a traditional tort for which recovery for

emotional distress is allowed. Bennett v. Malcomb, 320 S.W.3d 136, 137 (Ky. App. 2010); Banks

v. Fritsch, 39 S.W.3d 474, 481 (Ky. App. 2001). The Estate’s state-law claims against the Franklin

County Defendants should therefore be dismissed.

IV. CONCLUSION

For the reasons set forth above, the Franklin County Defendants respectfully request the

Court grant their Motion to Dismiss and dismiss with prejudice all claims asserted against them

herein.

5 In the event the Court dismisses all of the Estate’s § 1983 claims, it may decline to exercise supplemental jurisdiction

over the remaining state-law claims. 28 U.S.C. § 1367(c)(3). The Sixth Circuit has held that “generally, if the federal

claims are dismissed before trial … the state claims should be dismissed as well.” Landefeld v. Marion Gen. Hosp.,

Inc., 994 F.2d 1178, 1182 (6th Cir. 1993) (citation and internal quotations omitted).


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Respectfully submitted,

/s/ D. Barry Stilz

D. Barry Stilz

Lynn Sowards Zellen

Kinkead & Stilz, PLLC

301 East Main Street, Suite 800

Lexington, KY 40507

Telephone: (859) 296-2300

Facsimile: (859) 296-2566

[email protected]

[email protected]


CERTIFICATE OF SERVICE

I certify that true and correct copies of the foregoing have been served by CM/ECF on this

the 11th day of September, 2019, on counsel of record for all parties.

/s/ D. Barry Stilz



mailto:[email protected]








v.


ORDER

This matter is before the Court on the Motion of Defendants Franklin County, Kentucky

and Rick Rogers, Kelly Hayes, DeAndre Johnson, Kaelan Benedict, Aarron McDonald, Aaron

Willard, Mindy Carender, Robert Kelty, Charles King, John Ringer, Michelle Jiminez, Bruce

Sams, Anthony Pullen, Rosa Talarico, Colin Wells, Jacob Garland, Megan Lewis, Jonathan

Fenstermaker, Brandon Price, Darlene Yount, Joseph Campbell, Amanda Nwamkpa, Austin May,

Ladoya Huff, Bronwen Cole, Kayla Holland, Jenny Hockensmith, and Tarin Tejada, each

individually (collectively, the “Franklin County Defendants”), pursuant to Fed. R. Civ. P. 12(b)(6)

to Dismiss the Complaint against them herein. The Court, having reviewed the record and being

otherwise sufficiently advised, hereby GRANTS the Motion and DISMISSES WITH PREJUDICE

the claims filed herein against the Franklin County Defendants.


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